Advisory request 003 - Separation of powers

[Rogamark]

The second part of Lego's request, "To what extent are the three branches of government separated and to what extent are the powers distributed or balanced by the current Constitution?", is now before the full Court.

Five (5) days for briefs, until June 23, 22:08 CEST. Invited, but not required to participate, are Petitioner and the government through the Attorney General.

[legonimis]

Participatory brief, from the extremely non-legal non-attorney Legonimis, original petitioner in Advisory Request 001 and 003

I again thank the Court for accepting the petition and recognizing my standing in bringing said petition.

Given the ruling by the Chief Justice in Advisory Request 001, I believe this question has been answered in the specific. We can therefore generalize from it to some extent for this broader question.

As within most modern conceptualizations of constitutional democracy, in order to prevent an uneven and potentially totalitarian centralization of power within a single office or entity, the citizens of Spiritus have divided government into separate and quasi-autonomous branches, namely the Executive, the Legislature, and the Judiciary.

Our constitution delegates powers from the ultimate and chief authority of the citizenry to each branch, respectively, to carry out, to create, and to interpret the law.

The constitution, being minimal in its enumeration of specific powers, vests all relevant duties and powers to govern in each branch with no explicit limitation.

By vesting the powers of each branch to each branch, the citizens have given the relevant entities authority to act on our behalf and for our benefit, both as individuals and as a collective.

By vesting the duties of each branch to each branch, the citizens have given the relevant entities a mandate, an obligation, a responsibility to perform their functions with restraint in regards to the other branches’ powers and duties.

That is not to say that each branch is to be fully autonomous and independent from the others. As seen in Advisory Request 001, each branch has a direct interest in the actions of the other branches and are therefore empowered to regulate, to advise, or to check the other branches up to the limits of their own powers and duties.

To paraphrase the Chief Justice in that ruling, the Legislature has an interest (and perhaps even a duty?) to enact “procedural minimum safeguards” or similar regulations so long as those regulations do not obstruct the Court’s ability to fulfill its duties and do not likewise constrict the Court’s discretion in exercising its judicial powers.

Undoubtedly, the Executive and the Judiciary will engage in appropriate actions to delineate their interests in each other and in the Legislature. In fact, they have already begun to do so.

All this is to say ultimately that, in the opinion of the petitioner, the branches of the government of Spiritus do have separate roles within that government and are tasked, as both individual entities and as a collective body, to maintain a system of checks and balances so as to act for the benefit of the region and its citizens.

It is also the opinion of the petitioner that, due to the minimal nature of our current constitution, the branches of government and the officers of each therein are likewise tasked to examine effective models of government in other regions and in the world outside of NationStates in order to define their respective roles and to govern cooperatively on behalf of the citizens of Spiritus, who have thus delegated powers and assigned duties to those branches.

[TimS]

Brief for Spiritus as Amicus Curiae

This question is very wide and about a fundamental Constitutional principle. So, in the absence of a dispute, the Government only wishes to make two statements: that separation of powers is a doctrine fundamental to our system of government, and that the doctrine's existence does not mean that there is not a blending of the branches at times.

First, while the phrase "separation of powers" does not appear in the Constitution the doctrine¹ is inherent within how the Constitution is structured. Most importantly in articles 3, 5, and I(1) of the Constitution the executive, legislative, and judicial powers are invested in the Chief Executive, Legislature, and Judiciary respectively. It is the opinion of the Government that these three powers, on a fundamental level, are given solely to their respective branches. Further, no branch can exercise the fundamental power assigned to either of the other two branches.

Second, separation of powers does not create three completely separate branches that can never interact with each other. If nothing else, the three branches all must work together and are all engaged in the governing of Spiritus, whether they are the ones making, enforcing, or interpreting the law. This "blending" occurs for both philosophical and practical purposes and can be seen even in the structure of the Constitution. For example, while there are some limitations on how many elected positions a person can hold, there is nothing preventing one person from serving in some capacity in all three branches. More examples of this blending can be seen in our body of law, such as the legislature determining how citizenship applications are to be approved and what the qualifications for citizenship are despite the executive being the branch that actually approves those applications and the legislature having nothing to do with it absent an appeal. These are just a few general examples to make the point that, while the separation of powers is definitely alive and well in Spiritus and it must be respected, some blending of the branches can (and sometimes needs to) occur.

The Government thanks the Court for its time.

Timothy Snyder
Attorney General of Spiritus

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¹Black's Law Dictionary defines separation of powers as: "the division of governmental authority into three branches of government — legislative, executive, and judicial — each with specified duties on which neither of the other branches can encroach."

[Rogamark]

Advisory request 003 is dismissed as improvidently granted.

Statement of Rogamark, Chief Justice, respecting the dismissal:

It is indeed clear from the structure of the Constitution that separation of powers as a general principle is at least implicit, and at a minimum, one branch of government must not obstruct another from fulfilling its constitutionally assigned core duties. I have applied this principle in Advisory Opinion 001, but I made no attempt to do more than find a minimum standard. While I agreed that it would be helpful to have some guidelines of general applicability, I referred the task of finding them to the full Court. 

The language of the Constitution, however, is rather silent on the matter. In order to delineate clear boundaries, we would have to exceed our role as a judiciary and draw the lines as we see fit. We decline to do so, and instead choose to wait for actual cases revolving around this issue where we have more to work with. 

We thank the participants for their briefs, to which we will refer in the future. Seeing as every advisory request so far at least touched on separation of powers, I'm convinced neither you nor we labored in vain. The question will certainly come up again.